Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

YANCICK v. HANNA STEEL CORPORATION (AUGUST 3, 2011)

Hanna Steel Corporation employed Matthew Yancick, a white man, for a few years in the mid-2000s. Hanna has a policy prohibiting all forms of harassment and instructs employees to report any harassment to the Human Resource Manager or the General Manager. Yancick signed an acknowledgment of the policy and pledged to follow it. Smith worked with Brad Johnson, an African-American man, while at Hanna. Originally, their relationship was good. It began to deteriorate in early 2005. The two had several confrontations, some of which had racial overtones and some of which did not. Johnson also had confrontations with other employees. Yancick complained at times to his immediate supervisor but never to the Human Resources Manager or the General Manager. In December of that year, Yancick suffered severe and permanent injuries when a steel coil fell on him from a machine operated by Johnson. Yancick asserts that the action was intentional and brought a hostile work environment claim under § 1981. Hanna moved for summary judgment. Yancick moved for and was granted additional time under Rule 56 but was warned by the district court that no additional time would be allowed. With four minutes left in his extension, Yancick filed an oversized brief with a motion for leave to file. He did not file any of the referenced exhibits. A short time later, Yancick filed a substitute response that met all of the page and word limits, again accompanied by a motion for leave to file but again unaccompanied by any exhibits. He finally filed the exhibits a few days later. Judge McDade (C.D. Ill.) denied the motion's, did not consider his response or his disputed facts, and granted summary judgment to Hanna. Yancick appeals.

In their opinion, Seventh Circuit Judges Wood, Williams, and Tinder affirmed. The Court first addressed the procedural issue and noted that it routinely endorses district courts' strict compliance with local rules. The Court rejected Yancick's argument that he had good cause or that his failure was simply a "requirement of form" under Rule 83. The Court found no abuse of discretion in the district court's ruling. On the merits, Yancick must prove that: a) he endured a subjectively and subjectively offensive environment, b) race was the cause, c) the conduct was severe or pervasive, and d) there must be a basis for employer liability. The Court conceded that the record before the coil incident showed that Johnson's conduct was immature and boorish and that he exhibited hostility toward Yancick, but concluded that it did not amount to the severe and pervasive work environment required. In fact, most of Johnson's hostility was not race based. With respect to the coil incident itself, Yancick relied in large part on lay opinion testimony that Johnson was racist to support his assertion that the act was intentional. The Court concluded that the testimony was unsupported by facts and merely reflected the witnesses’ beliefs. In addition, the record supports the conclusion that the incident was an accident and not intentional. Finally, the Court noted that Yancick failed to establish employer liability. Hanna had a formal procedure in place. Yancick was aware of it. Yancick did not take advantage of the remedies provided.

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SUTHERLAND v. WALMART STORES (January 21, 2011)

Arturo Aguas and Maria Sutherland worked together in the deli section of a Walmart store in Seymour, Indiana. They had worked together for years without incident -- but that changed on December 11, 2006. On that day, Aguas assaulted Sutherland in the deli cooler. He kissed her and fondled her and gave her an inappropriate Christmas card. Sutherland reported the incident to her supervisor the following day. A Walmart manager interviewed one co-worker on that day and another co-worker the following day. They continued their investigation throughout December, while Aguas was on vacation. When confronted upon his return, Aguas admitted some inappropriate conduct but denied the most serious allegations. The company decided that it could not substantiate all the allegations but disciplined Aguas severely for those that they could substantiate. The company also adjusted both employees' time schedules so that they rarely worked at the same time and also assigned them to workstations almost 80 feet apart when they did work together. Not satisfied with the company's response, Sutherland filed a police report. The police investigation was more successful than the company's. Aguas ultimately admitted the allegations and pled guilty to a sexual battery charge. Walmart revisited its investigation and terminated Aguas' employment. Sutherland took medical leave shortly thereafter for stress. Walmart terminated her employment when she failed to return to work, even after her leave expired. Sutherland brought suit against Walmart, alleging a hostile work environment and negligent infliction of emotional distress. Judge Lawrence (S.D. Ind.) granted summary judgment to Walmart. Sutherland appeals.

In their opinion, Seventh Circuit Judges Cudahy, Flaum, and Kanne affirmed. The Court assumed that the harassment was severe enough to create a hostile work environment and addressed only the issue of employer liability. Sutherland presented two theories -- a failure to prevent the assault theory based on an incident two or three years earlier in which Aguas was accused of harassment and a failure to investigate theory. The Court rejected the first theory based on its opinion in Longstreet in which it found no employer liability on very similar facts (one prior incident, probably not rising to the level of actionable harassment, properly investigated). On the second theory, the Court conceded that employer liability can arise when its investigation is not prompt and adequate. Here, the Court found that Walmart's investigation was prompt and adequate and that its corrective actions were reasonably likely to end the harassment. There is, therefore, no basis for employer liability and summary judgment was proper. The Court also rejected Sutherland's "underdeveloped" negligent infliction of emotional distress claim. To the extent the claim is based on pre-assault actions, it fails because Walmart was not on notice that Aguas was likely to assault her. To the extent that the claim is based on post-assault actions, it fails because Sutherland has not even alleged a physical impact, a requirement of Indiana law.

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THOMPSON v. MEMORIAL HOSPITAL OF CARBONDALE (November 3, 2010)

Archie Thompson was a paramedic with the Jackson County Ambulance Service (JCAS), which served the Southern Illinois Regional Emergency System. Memorial Hospital of Carbondale had medical control of the System. Thompson was the only African-American full-time paramedic in the entire System. In late 2003, Thompson handled a diabetic emergency call. He administered an intravenous solution and revived the patient. The patient declined further medical assistance and Thompson left. After he returned to his base, Tim Brumley (Thompson's supervisor) criticized him for not following the proper protocol of calling medical control before leaving the scene of a diabetic emergency. Thompson claimed not to know the protocol. It was not posted at the base or in his ambulance. Brumley also learned, on inquiry, that other paramedics were doing the same thing. Brumley reported his concerns to Paula Bierman, the System Coordinator. Bierman advised the Hospital's Medical Director that Thompson should be disciplined, citing both his “total disregard” for protocol and a then-recent failing test result. A few days later, Bierman prepared a disciplinary report removing Thompson from primary care medical duties and signed Doolittle's initials. Thompson was placed on paid probation for three months, during which time he was under constant supervision. While on probation, he began seeing a counselor. Shortly thereafter, he took a medical leave of absence and eventually decided not to return to work. Thompson filed suit against Memorial Hospital and the ambulance service, alleging race discrimination, hostile work environment, and constructive discharge. Judge Murphy (S.D. Ill.) granted summary judgment to the ambulance service on all claims and to Memorial Hospital on the hostile work environment and constructive discharge claims. A jury heard the race discrimination claim against the Hospital, found in Thompson's favor, and awarded $500,000. The Hospital appeals from the jury verdict -- Thompson cross-appeals from the hostile work environment and constructive discharge summary judgment rulings.

In their opinion, Judges Kanne, Evans, and Williams affirmed in all respects except with respect to the amount of damages. The Court dispensed with the cross-appeal in relatively short order. To be successful, a hostile work environment claim must contain evidence of severe and pervasive harassment -- so much so that it changes the conditions of employment. The test is even higher for a constructive discharge claim. The Court concluded that the evidence here did not reach that level. With respect to the Hospital's appeal, the Court noted that it raised several arguments that were improperly preserved below. First, the Hospital argues that Thompson was not its employee. But it admitted below that this was a factual question and it never presented the issue to the jury. Second, the Hospital argues that the jury should not have heard testimony of the racial comments Bierman made because she was not the decision maker. But the evidence is relevant if she exerted significant influence over the decision maker. Here, the district court made a threshold determination that there was enough evidence on that issue to go to the jury and the Hospital did not seek an instruction on the point. Third, the Hospital argued that the probation was not an adverse employment action. But, although probation is not always an adverse employment action, the district court ruled that whether it was here was a factual question. The Hospital did not argue the point the jury or ask for an instruction. Having decided not to press these issues before the jury, the Hospital cannot rely on them now. Finally, the Court did believe that the $500,000 award was excessive. There was testimony of Thompson's depression and anxiety that his therapist characterized as "severe." But the adverse employment action was only placement on probationary status with no change in compensation. After reviewing awards in similar cases, the Court landed on a remittitur to $250,000.

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CHANEY v. PLAINFIELD HEALTHCARE CENTER (July 20, 2010)

Brenda Chaney, an African-American female, worked at the Plainfield Healthcare Center as a nursing assistant for three months in the summer of 2006. Plainfield's policy (possibly undertaken in a good faith belief that it was required by law to do so) was to acquiesce in its residents' racial preferences. Accordingly, every daily assignment sheet noted that particular residents preferred no African-American nursing assistants. Chaney also was the target of a number of derogatory racial comments during her employment. Plainfield did take corrective action when instances of racial remarks were reported. In September of 2006, Chaney and a coworker both refused to come to the aid of a resident. A nurse reported the incident and also reported that Chaney used profanity when she ultimately did respond. Although the unit supervisor's investigation and knowledge of Chaney led her to be skeptical of that charge, the director of nursing decided to fire Chaney. She was informed that the reason for her termination of employment was her use of profanity. Chaney brought an action under Title VII alleging a hostile work environment and an unlawful termination. Judge Barker (S.D. Ind.) granted summary judgment to Plainfield. Chaney appeals.

In their opinion, Judges Rovner, Williams, and Sykes reversed and remanded. The Court had "no trouble" concluding that Chaney's work environment was objectively offensive. It relied not only on the overt derogatory comments and the more subtle remarks supported by the record, but also the fact that the daily assignment sheet contained the racial restrictions. The Court rejected Plainfield's argument that its policy was reasonable and necessary to comply with law. Although recognizing that gender discrimination may sometimes be allowed to accommodate privacy interests, the Court stated that the same is not true for racial discrimination. The Court also concluded that Indiana law did not require the policy and, even if it did, federal law would trump the requirement. On a practical level, the Court recited a number of options an employer has when faced with racial hostilities. With respect to the discharge claim, the Court concluded that a reasonable jury could find that Plainfield's decision to fire Chaney was motivated by race. It relied on Plainfield's shifting justification for its action, the unusual way in which the incident investigation was conducted and concluded, and the absence of any disciplinary action with respect to the other nursing assistant involved in the incident.

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